Terms of Trade
1.1 These Terms of Trade (Terms) cover the business activities of FOX Web Solutions Limited (FOX) and the conditions of doing business with FOX. By employing the services, or requesting work, of FOX Web Solutions Limited you are agreeing to these Terms of Trade. If you do not agree to these Terms please contact us immediately and discontinue the use of any of FOX’s products and/or services.
2.1 “FOX” and “We” shall mean FOX Web Solutions Limited or any agents or employees thereof.
2.2 “Client” and “You” and “Your” shall mean the client, any person acting on behalf of and with the authority of the client, and employee, agent or representative of the client or any person purchasing goods or services from FOX.
2.3 “Goods” shall mean all materials, print work, packaging, signage, stationery, web sites, web applications, shopping carts, web servers, photographs, other web products, Content Management Systems, Client Relationship Management systems, html, CSS, source code and all pre-packaged services sold as a commodity.
2.4 “Services” shall include without limitation the provision of all Internet consulting, creative concepts, User Interface (UI) design, Information Architecture (IA), Copywriting, photography, Trade marking, graphic design, advertising placement, Web site development, web and mail hosting, search engine optimisation, system debugging, optimisation or maintenance, live media streaming, print management services, all charges for labour, hire charges, insurance and support charges, and any fee or charge associated with the supply of services by FOX to the client.
2.5 “Price” shall mean the cost of the goods or services as agreed between FOX and the client subject to clause 4 of these terms and conditions of trade.
2.6 “Hosting” is the rental of space on a server (computer connected to the Internet with web application serving capability) provided to the client for the operation of web applications.
2.7 “Royalty” and “Licence” is the fee charged and the use limitations on a product sold by FOX to the client.
2.8 “Copy” shall mean all text to be included in a document either printed or electronic.
2.9 “Source Code” shall mean all files needed to convert information from human-readable form to some kind of computer-executable form.
2.10 “Terms” shall mean the entire Terms of Trade contained herein and include any Project Agreement specifically relating to a project.
2.11 “Intellectual property” and “IP” means:
• copyright (including rights in the nature of, or analogous to, copyright);
• database rights;
• moral rights;
• trade marks;
• User Interface (UI) designs;
• Information Architecture (IA);
• service marks;
• written copy;
• source code;
• Application, website and system information;
• confidential information; and
• any other rights of a proprietary nature in or to the results of intellectual activity in the commercial, technical, computer programming, artistic or literary fields.
2.12 “Software” or “Application” or “System” shall mean all source code, all interoperability, all keys, tokens, certificates, APIs, the UI and AI, all documentation, specifications, development plans, knowledge of processes, databases, confidential information, proposals, trade secrets, staff knowledge and experience, client communications.
3.0 Collection And Use Of Information About You And Your Business
3.1 The client authorises FOX to collect, retain and use any information about the client and the clients’ business, director(s), shareholder(s), Guarantor(s) and supplier(s) for the purpose of assessing the client’s credit worthiness, sending the client bills, reminders, demands and recovering money owed by the client or enforcing any rights under this contract.
3.2 The client authorises FOX to disclose any information obtained by any person to any other person, agent, or other entity for the purposes set out in clause 3.1.
3.3 Where the client(s), director(s), shareholder(s), Guarantor(s) is/are a natural person(s) the authorities under clauses 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993.
4.0 Quotations and Estimates
4.1 Where a quotation is given by FOX for goods and/or services:
-The quotation shall be valid for a maximum of 30 days from the date of issue; and
-The quotation shall be exclusive of Goods and Services Tax (GST) unless specifically stated to the contrary.
4.2 Where an estimate is given by FOX for Goods and/or services:
-The estimate shall be valid for a maximum of 30 days from the date of issue; and
-The estimate shall be exclusive of Goods and Services Tax (GST) unless specifically stated to the contrary; and
-The price is provided as a guide only and the final price charged may vary significantly from that estimated. FOX will provide the client with an explanation and a breakdown of costs where the variance exceeds 30%.
4.3 The client agrees that FOX is authorised to undertake work and charge for goods and services without the need for a formal project agreement. The client also agrees that FOX is authorised to undertake work and charge for goods and services under the value of $1,000+gst without seeking formal instruction from the client where, at its discretion, the additional goods or services are deemed to be reasonably required in order to complete any project(s) that the client has contracted FOX to complete or as part of an on-going marketing or development plan.
4.4 Where the client has expressed in writing the importance of a delivery date, FOX may charge an urgency fee for giving the work priority over other scheduled work. The increase in hourly charge will not exceed 40%.
5.0 Modifications and Acceptance
5.1 FOX reserves the right to change these Terms at any time without notice to you by posting changes online at www.FOX.co.nz you are responsible for reviewing regularly the information posted online to obtain timely notice of such changes. Your continued use of FOX services and products following any such changes and your failure to notify FOX of your not accepting one of more of the Terms shall constitute your acceptance of these Terms as modified by the posted changes.
5.2 Any instruction(s) received by FOX from the client for the supply of goods or services shall constitute acceptance of the Terms and Conditions contained herein. For new or large projects, a formal acceptance may be signified by the signing of a Project Agreement form. The Project Agreement forms part of these Terms for a specific job.
6.0 Client Approval and Authorisation Of Proofs
6.1 From time to time FOX may seek the approval or “sign off” of goods or services from the client for design, print, programming, copywriting, editing, proofing or any other goods or services prior to going into production, publication or delivery.
6.2 In its professional capacity you accept that FOX takes all reasonable steps to ensure work is free of mistakes, errors or defects, etc. and you agree that FOX, its staff and agents, are not responsible for any mistakes or deficiencies in work whether signed off by you the client, or a representative of you the client, or by FOX acting as your agent.
7.1 Where no price is stated in writing in a Project Agreement or agreed to orally the goods and/or services shall be deemed to be sold at the current amount as such goods and services are sold or provided by FOX at the time of the contract.
7.2 The price may be increased by the amount of any reasonable increase in the cost of supply of the goods or services that is beyond the control of FOX between the date of the contract and delivery of the goods or providing of the services.
7.3 Where a quote has been requested for a project, the cost provided is simply an estimation. Unless expressly stated, the final cost will be based on time and materials expended by FOX to provide the service.
8.1 Payment for goods and/or services shall be made in full on or before the due date of the supplied Tax Invoice.
8.2 Interest may be charged on any amount owing after the due date at the rate of 2.5% per month, or part thereof, compounding.
8.3 Where the duration of a project goes over a month, a progress invoice may be sent at the end of the month for work completed to date.
8.4 FOX reserves the right to cease work on a partially completed project until invoiced progress payments have been made.
8.5 FOX reserves the right to require an upfront payment of up to 50% on the total project cost before the commencement of projects.
8.6 Any expenses, disbursements and legal costs incurred by FOX in the enforcement of any rights contained in this contract shall be paid by the client, including any reasonable solicitor’s fees or debt collection agency fees.
8.7 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full unless otherwise agreed to by FOX.
8.8 FOX may require full payment before releasing the goods or services.
8.9 FOX may withdraw all services and refuse to supply goods to a client that is overdue with their account.
9.0 Our Responsibilities To You
9.1 We will use our best endeavours to provide you with prompt, courteous service.
9.2 We will inform you of the processes required in order to complete your work.
9.3 We will supply you the goods, services and information you request or we will explain why we cannot meet the request.
9.4 We will keep you informed about the progress of your work.
9.5 We will endeavour to give you accurate cost and delivery estimates
10.0 Your Responsibilities To FOX
10.1 You must provide us with a clear brief or with clear instructions at the beginning of a job.
10.2 You must complete and return Project Agreements promptly.
10.3 You warrant that any material supplied to us for inclusion in your website does not infringe upon the intellectual property rights of a third party, and you further agree to ensure that the information you provide meets the legal requirements of the Fair Trading Act 1986, the Copyright Act 1994, the Defamation Act 1992, all other applicable laws and any relevant Advertising Codes of Practice. You also agree to indemnify us against any claim that may results from the inclusion of such materials in your website.
10.4 You must supply photography, image files and any other artwork and copy within the agreed timeframes. No artwork save template design will be supplied by us unless agreed in writing prior to commencement of the works.
10.5 Where you have failed to provide material or instruction necessary to advance a project or part of a project within a satisfactory time frame, FOX may adjust any “agreed to” time frames for delivery of its obligations under the contract as it sees fit, cease working on the project until such time as the required instruction is provided by you, or FOX may give you notice that the project is to be terminated.
10.6 It is your responsibility to ensure that the documentation covering the scope and the feature requirements of a project are what you require before approving commencement of work. Adding features, making architectural or UI changes after commencement will attract additional charges. Scope, UI, design and system problems caused by feature creep are not the responsibility of FOX and solving such problems will attract fees.
10.7 You must review, test and identify any system bugs or documents failings at the testing and proofing stages and within 10 working days or being supplied with the test deployment or proof document.
10.8 Any issues with goods or services quality must be raised within 7 days of receipt. Any issues with invoiced charges must be raised within 7 days of receipt or you will be deemed to have accepted the goods or services as being to your requirements.
11.1 Unless expressly included elsewhere in writing, the supply of the text content and the editing and proofing of text content for printed and electronic documents is the client’s responsibility. If no copy is supplied by you, FOX may generate appropriate copy as it deems necessary. The costs of copywriting, editing and proofing undertaken by FOX will be excluded from the contract price and billed out separately at an hourly rate.
12.0 Image Costs and Royalties
12.1 Unless expressly stated elsewhere in writing, all costs associated with photography and/or finding, purchasing and management of license associated with images needed for printed or electronic documents are excluded from the price and will be billed as additional costs.
13.0 Hosting and Compatibility of Web Applications
13.1 FOX program in PHP and use MySQL databases.
13.2 Your web site and web application will be designed and built to operate on servers that support PHP and MySQL.
13.3 Web sites and Web applications are programmed and configured to work on the following browsers: Firefox version 3 onwards for Mac and PC and Internet Explorer versions 7 onwards for PC. Websites and Web applications may be displayed differently between browsers or operating systems.
13.4 Development for specific browsers, browser versions or platform needs outside of those covered in 13.2 and in 13.3 will attract additional fees.
13.5 E-mail and web hosting services provided by FOX are subject to these Terms.
13.6 FOX does not warrant that the functions, services and facilities contained or provided by its web servers, mail servers, web sites and software will be uninterrupted, timely, secure or error free, that defects will be corrected, or that this site or the server that makes it available are free of viruses, bugs, spyware or similar flaws or represent the full functionality, accuracy, and reliability of the materials.
13.7 If you wish to host your website or application with another provider you are required to notify FOX of this prior to the commencement of application work on the website or application. All project management, client management, third party management, uploading, testing and problem solving time and disbursements required to enable this will be billed to you and you will be liable for. Any issues that arise from hosting externally are not the responsibility of FOX and we accept no liability for them.
13.8 If you choose to move to another host server after the commencement of work, you will be required to notify FOX a minimum of four weeks in advance of the date you wish to move. You will also, be liable for all project management, client management, third party management, uploading, testing and problem solving time and disbursements and to pay a deposit for this as estimated by FOX. Any issues that arise from hosting externally are not the responsibility of FOX and we accept no liability for them.
13.9 You may only move your website or application to another host server if you can satisfy FOX that you own all the Intellectual Property relating to the files you are shifting or you have a licence from FOX to operate its IP with another host server or development team.
13.10 FOX does not permit third parties, that it has not contracted, access to its server environment under any circumstances.
14.1 The time agreed for delivery shall not be an essential term of any contract. Where the client has expressed in writing the importance of a delivery date, FOX will give delivery by the date a high priority and keep the client informed of progress.
14.2 Where FOX delivers goods or provides services to the client by instalments and FOX fails to deliver or supply one or more instalments the client shall not have the right to repudiate the contract but shall have the right to claim compensation as a severable breach.
14.3 Notwithstanding clause 16, all risk in respect of the goods or services passes to the client upon delivery.
14.4 Upon delivery of the goods or services the client will insure and keep insured goods and services for their full “insurable value”.
14.5 You should note that the security of Internet, text message and e-mail is uncertain. By sending sensitive or confidential messages which are not encrypted you accept the risks of such uncertainty and possible lack of confidentiality over the Internet and other electronic communication.
14.6 Username and Password access to some products, services or content may require registration or you being allocated a user ID (username) and password that must be used whenever requested. That username and password are personal to you and you agree at all times to maintain the confidentiality of your username and password and not to disclose them to any third party. You agree that you are solely responsible for any use of the products, services, web sites and software by any person using your username and password. You agree to indemnify FOX against any and all claims arising out of your failure to maintain the confidentiality of your username or password.
15.1 Where the client has not paid for in full for any goods or services in its possession, property of such goods and services shall remain with FOX and:
The goods and services shall be held by the client as bailee; and If the goods are attached, fixed, or incorporated into any property of the client, such as in-house servers set up by FOX for the client, the title of the goods shall remain with FOX until the client has made payment for all goods, and where those goods are mixed with other property so as to be part of or a constituent of any new goods, title of these new goods shall deemed to be assigned to FOX as security for the full satisfaction by the client of the full amount owing between FOX and client.
15.2 The client gives irrevocable authority to FOX to suspend any goods or services not paid for in full by the client. FOX shall not be liable for costs, damages or expenses or any other losses incurred by the client or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever.
15.3 The client owns all the text, images, designs and computer applications created for them once paid for in full but subject to intellectual property, royalty and license terms contained herein and in any separate documentation provided.
15.4 The client owns one license to use the goods or services for themselves only. The client may not duplicate the website or any part of it without the consent of FOX.
15.5 Source code, Content Management System Code, Client Relationship Manager Code, other such products supplied under license and all Intellectual Property to the client remain the property of FOX.
16.0 Acceptance of Goods and Services
16.1 The client shall be deemed to have accepted the goods supplied and services provided unless the client notifies FOX otherwise within 7 days of delivery of the goods or the providing of the services to the client.
17.0 Intellectual Property
17.1 Intellectual property is defined as: Creative concepts, customised designs, copywriting, illustration, photography, customised Internet or other software applications developed for the client, or setting up of servers, or Project Specification Documentation prepared for clients.
17.2 FOX owns the intellectual property on all work completed by FOX and reserves the right to reuse some or all of the work on other projects as FOX sees fit without breaching client copyright.
17.3 The client owns license to use internet and software applications, photographic royalties for its self and does not have the right to sell the application to any other party unless agreed to in writing by FOX.
17.4 Source code, Content Management System Code, Client Relationship Manager Code, other such products software and Web Applications supplied under license to the client and all Intellectual property remain the property of FOX and cannot be disseminated, distributed, reverse engineered, re-engineered, or otherwise modified without the express written consent or license from FOX.
17.5 FOX reserves the right to use all work sold to a client as part of its own marketing activities and demonstrate its capabilities.
18.1 Except as otherwise provided by statute FOX shall not be liable for:
– Any loss or damage of any kind whatsoever whether suffered or incurred by the client or another person whether such loss or damage arises directly or indirectly from goods or services or advice provided by FOX to the client; and
– Any downtime in service provision caused by third parties to which FOX is reliant on to provide the service to the client
– Except as provided in this contract FOX shall not be liable in contract, or in tort, or otherwise for any loss, damage, or injury beyond the value of the goods or services provided by FOX to the client; and
– Any losses or delays stemming from an Act of God, a natural event or disaster that directly or indirectly inhibits FOX’s fulfilment of contractual obligations.
18.2 The client shall indemnify FOX against all claims of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of clause 18 whether caused or arising as a result of the negligence of FOX or otherwise, brought by any person in connection with any matter, act, omission, or error by FOX, its agents or employees in connection with the goods or services.
18.3 FOX is not responsible for any future proofing of a web site. The web site functionality may be affected by new web browsers that are released after the web site completion. Costs incurred to fix any incompatibilities are chargeable to the client.
19.0 Consumer Guarantees Act
19.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the client acquires goods or services from FOX for the purposes of a business in terms of section 2 and 43 of that Act.
19.2 FOX shall be under no liability whatsoever to maintain, repair or replace software, web site(s), web content, databases or database content, design files or any supplied equipment should any of the afore mentioned not perform as a result of the use by the client, the clients employees agents or suppliers which do not meet the specifications of FOX Web Solutions Limited.
20.1 FOX shall, without any liability, and without any prejudice to any other right it has in law or equity, have the right by notice to suspend or cancel in whole or in part any contract for the supply of goods or services to the client if the client fails to pay any money owing after the due date or the client commits an act of bankruptcy as defined in section 19 of the Insolvency Act 1967, or (if the client is a company) does any act which would render it liable to be liquidation or have a receiver appointed over its property.
20.2 Any cancellation or suspension under clause 20.1 of this agreement shall not affect FOX claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this contract or the client’s obligations to FOX under this contract.
20.3 If any failure by FOX to perform its obligations to the client are not corrected within 21 days of being served notice of the failure, the client may terminate any goods or services by providing notice in writing. All work done and all costs incurred by FOX up until this cancellation notification is received, along with all costs associated with ceasing the provision of goods and services, will be charged as outlined in this Agreement and be due within 21 days of the notice of cancellation.
20.4 FOX can at any time terminate any goods or services by providing 14 days notice in writing.
20.5 The client may terminate any goods or services by providing by 14 days notice in writing. The client will be liable, upon the termination date, for all time and costs incurred by FOX on any work up until that date or 50% of the project estimate (or quote) – whichever is more.
21.1 The client shall not assign all or any of its rights or obligations under this contract without the prior written consent of FOX.
21.2 FOX shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
21.3 Failure by FOX to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations FOX has under this contract.
21.4 Any waiver given may only be in writing and applies only to the right and on the occasion specified in the waiver.
21.5 The law of New Zealand shall apply to this contract except to the extent expressed negative or varied by this contract.
21.6 Where the terms of this contract are at variance with the order or instruction from the client, this contract shall prevail.
21.7 If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired. Any dispute between the parties is to be dealt with in accordance with the Arbitration Act 1996. This excludes any action taken where there has been a default in payment of payments owed to FOX.